ance of ministerial acts, he is as responsible for the manner in which he performs them, or for neglecting or refusing to perform them, as if no judicial functions were intrusted to him. The boundary of his judicial character is the line that marks and defines his exemption from civil liability. Our law, organic and statutory, confers on the probate judge large judicial powers, and there is also assigned to him the performance of many acts merely ministerial; he is both a judicial and a ministerial officer. Judicial power is authority, vested in some court, officer or person, to hear and determine, when the rights of persons or property, or the propriety of doing an act, are the subject-matter of adjudication. Official action, the result of judgment or discretion, is a judicial act. The duty is ministerial, when the law, exacting its discharge, prescribes and defines the time, mode and occasion of its performance, with such certainty that nothing remains for judgment or discretion. Official action, the result of performing a certain and specific duty arising from fixed and designated facts, is a ministerial act. Flournoy v. City of Jefferson, 17 Ind. 169; Tenn. & Coosa R. R. Co. v. Moore, 37 Ala. 371; Morton v. Comp. Gen., 4 S. C. 430; Commissioner v. Smith, 5 Tex. 471; Life & Fire Ins. Co. v. Wilson, 8 Pet. 291. The inquiry should be directed to the question, does discretionary power attach to the office—the authority to decide, whether the license should or should not be granted? Section 1544 of the Code provides: "No license must be granted to sell vinous or spirituous liquor, unless the applicant produce to the judge of probate of his county, or to the person authorized by law to grant such license, the recommendation of ten respectable freeholders and householders thereof, residing within four miles of such applicant, stating that they are acquainted with him, that he is possessed of good moral character, and is in all respects a proper person to be licensed." The succeeding section prescribes the oath, which the applicant must take and subscribe before license is granted; which oath may be administered by any officer authorized to administer oaths; and section 491 makes it the duty of the probate judge to issue the license upon payment of the amount required by law to be paid. Blank licenses are furnished by the auditor, to be filled and signed by the probate judge. No power is conferred on the probate judge to pass on the moral character of the applicant, or whether he is a proper person to be licensed, or on the propriety of issuing a license. He adjudges nothing-decides no question. On the production of the proper recommendation, taking and subscribing the prescribed oath, and paying the requisite amount, it is the clear and specific duty of the probate judge to issue the license. If it be said, that the probate judge has to ascertain that the recommendation is by the freeholders and householders of the county, residing within five miles of the applicant, a similar necessity exists in every case of a ministerial duty. A sheriff must determine whether process, coming into his hands, is issued from a court of competent jurisdiction, and is regular on its face; and a treasurer of public moneys must ascertain whether the warrant is drawn by such officer, and in such manner that its payment is a duty; but the execution of the process, and the payment of the warrant, are ministerial acts. A judge must determine whether a judgment is entered according to the verdict of the jury, or the consideration of the court, and whether a bill of exceptions correctly recites the proceedings; but the act of signing the judgment and bill of exceptions is ministerial. That a necessity may exist for the ascertainment, from personal knowledge, or by information derived from other sources, of the state of facts on which the performance of the act becomes a clear and specific duty, does not operate to convert it into an act judicial in its nature. Such is not the judgment, or discretion, which is an essential element of judicial action. Crane v. Camp, 12 Conn. 464. If the probate judge acts judicially in the matter of issuing a license, his decision is final and conclusive, and a license issued to a relative, within the degrees that disqualify a judge, is void. Halso v. Seawright, 65 Ala. 431. An appropriate and general test is laid down in Rains v. Simpson, 50 Tex. 495, as follows: "Perhaps as safe criterion as any other, to ascertain whether a private suit will or will not lie, is to adopt the rule which governs in cases in which a mandamus would or would not be granted. On the refusal of the probate judge to issue the license, when first applied for, the plaintiff made application to the Circuit Court for a mandamus, commanding him to issue it. A peremptory mandamus was granted by the Circuit Court, and on appeal to this court the judgment was affirmed. Tally v. Grider, 66 Ala. 119. The character of the specific act asked to have performed was necessarily involved in the issue, and determined. This is manifest, when it is observed that a mandamus, issued to an officer in a matter in respect to which he has discretionary powers, requires him only to take action, without directing the manner in which his discretion shall be exercised; but, when the act is merely ministerial, and its performance mandatory, the officer having no discretion, the mandamus requires and commands the doing of the specific act. If the duty of the probate judge is judicial-if he possesses discretionary power to issue or not to issue a license-a mandamus would not, and could not have been granted. The probate judge having already taken action and refused, a mandamus would have had no office to perform. Awarding a peremptory mandamus is a judicial ascertainment that the probate judge has no discretionary powers. It may be proper to observe, that our consideration has been directed to the nature of the power and duty of the probate judge under the general laws providing for and regulating the issue of license to sell vinous or spirituous liquor. While we judicially know the act, commonly called the "Local Option Law," passed in 1875, and that it is applicable to Jackson county, on demurrer to the bill of complaint, which does not aver, nor make any allusion to any proceeding under the act, we can not take judicial notice that an election has been ordered and held as provided, or of its result. An expression of opinion, on the assumption that an election has been ordered, and held with a prohibitory result, would be premature, and mere dictum. Reversed and remanded. ERSKINE V. HOHNBACH. Supreme Court of the United States. December, 1871. Hohnbach sued Erskine, a collector of internal revenue, in an action of trespass for the seizure by him, the said collector, and conversion to his use of certain personal property of the alleged value of $10,000, belonging to him, the plaintiff The declaration was in the usual form in such cases, and alleged that the seizure and conversion were made in May, 1869, at Milwaukee, in the State of Wisconsin. To this the defendant pleaded the general issue, and two special pleas, in which he justified the acts complained of on the ground that they were done by him as collector of internal revenue of the first collection district of Wis-, consin, in the enforcement of an assessment chargeable against the plaintiff, duly made by the assessor of the district, and certified to him, with an order directing its collection. Both pleas set up the same defence of justification as collector of internal revenue, differing only in the particularity with which the facts of assessment and distraint and sale of the property were detailed. Mr. Justice FIELD delivered the opinion of the court. The collector could not revise nor refuse to enforce the assessment regularly made by the assessor in the exercise of the latter's jurisdiction. The duties of the collector in the enforcement of the tax assessed were purely ministerial. The assessment duly certified to him, was his authority to proceed, and, like an execution to a sheriff, regular on its face, issued by a tribunal having jurisdiction of the subject-matter, constituted his protection. Whatever may have been the conflict at one time, in the adjudged cases, as to the extent of protection afforded to ministerial officers acting in obedience to process, or orders issued to them by tribunals or officers invested by law with authority to pass upon and determine particular facts, and render judgment thereon, it is well settled now, that if the officer or tribunal possess jurisdiction over the subject-matter upon which judgment is passed, with power to issue an order or process for the enforcement of such judgment, and the order or process issued thereon to the ministerial officer is regular on its face, showing no departure from the law, or defect of jurisdiction over the person or property affected, then, in such cases, the order or process will give full and entire protection to the ministerial officer in its regular enforcement against any prosecution which the party aggrieved thereby may institute against him, although serious errors may have been committed by the officer or tribunal in reaching the conclusion or judg ment upon which the order or process is issued. Savacool v. Boughton, 5 Wend. 171; Earl v. Camp, 16 id. 563; Chegaray v. Jenkins, 5 N. Y. 376; Sprague v. Birchard, 1 Wis. 457. Judgment affirmed. COMMONWEALTH V. SHORTALL. Supreme Court of Pennsylvania. May, 1903. Petition for writ of habeas corpus on behalf of the relator against respondent, a constable who had him in custody under a warrant of arrest for homicide, issued by a justice of the peace in Schuylkill county. Opinion by Mr. Justice MITCHELL, April 17, 1903: A somewhat full statement of the facts will be conducive to the proper understanding of the case. During the summer of 1902 a strike, beginning with a labor union known as the United Mine Workers of America, spread through nearly the whole of the anthracite coal region in Pennsylvania. As time progressed it was accompanied with increasing disorder and violence on the part of the strikers and their sympathizers, so that threats and intimidation not only of men but of their women and children, rioting, bridge burning, stoning and interference with railroad trains, destruction of property and killing of non-union workmen became of frequent occurrence. The communities affected were either in secret sympathy with these acts or lacked the courage to put an end to them. Among the places where the disorder was greatest was Shenandoah in Schuylkill county. There the police and the sheriff in attempting to preserve the peace were overpowered and beaten by mobs of strikers, and several citizens killed. The sheriff having called upon the governor, the latter first ordered out a portion of the militia and subsequently on further call, the entire division of the National Guard, on October 6, 1902, by General Order No. 39. The text of this order which is important is as follows: "In certain portions of the counties of Luzerne, Schuylkill, Carbon, Lackawanna, Susquehanna, Northumberland and Columbia, tumult and riot frequently occur and mob law reigns. Men who desire to work have been beaten and driven away and their families threatened. Railroad trains have been delayed and stoned, and tracks torn up. The civil authorities are unable to maintain order and have called upon the governor and commander-in-chief of the National Guard for troops. The situation grows more serious each day. The territory involved is so extensive that the troops now on duty are insufficient to prevent all disorder. The presence of |